Standing With Wendy

Summary

On June 25, 2013, Texas Senator Wendy Davis filibustered for nearly twelve hours in order to block the passage of Senate Bill 5, a bill which would greatly impact access to reproductive healthcare in the state of Texas. Though her filibuster successfully blocked SB5, the bill was repackaged and passed in a second special session as HB2.

This work contains transcripts of almost 64 hours of debate and testimony on the Texas Senate and House floors, starting with Wendy Davis' filibuster of SB5, including the proposed House and Senate amendments for HB2, and ending with powerful citizen testimony on these bills.

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Standing With Wendy - Ana Mardoll

ALL RIGHTS RESERVED. Any unauthorized reprint or use of this material is prohibited. No part of this transcript may be reproduced without express written permission from Ana Mardoll, excepting cases protected by Fair Use.

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Note to the Reader

Like many people who became absorbed in the events that occurred in the Texas summer of 2013, I did not become actively involved until I heard about Wendy Davis' planned filibuster of Senate Bill 5. In the days leading up to the filibuster, while gathering and disseminating relevant news for my blog readers, I joked with other activists that Wendy Davis should spend her filibuster reading from Margaret Atwood's The Handmaid's Tale--a classic tale of reproductive rights being denied within a harmful patriarchal system--not realizing then that the Texas filibuster rules were not the read-from-the-phone-book filibuster rules popularized in movies like Mr. Smith Goes To Washington.

On the day of the filibuster, I watched Wendy Davis speak from start to finish, joining the ranks of what were later numbered to be 182,000 people watching the live video stream of the Texas Senate floor. From the confines of my home, I yelled along with the unruly mob, and I went to bed feeling like I had witnessed something truly amazing. And when I woke, I did so with the conviction that this had to be preserved in written words. I announced online that I was going to spend the next year transcribing the filibuster--a goal that soon grew to include the Senate and House amendment sessions on the bills that were reintroduced in the next special session--and within a matter of days over one hundred people had volunteered to help in this task.

Despite that strong interest, however, a few people have asked me over the course of this project: "Why? What value does this transcript add to the larger world?" And I have struggled to answer that, not from a lack of reasons, but rather from a surfeit--it is difficult to condense a project like this into a snappy one-line explanation.

To begin with, I believe that this is a historical document that should be accessible to all people regardless of physical ability. The Texas government archives maintain video of these events, but none of the material is subtitled or transcribed (or not such that I or any of my volunteers could find). Nor is there, as far as I could learn, an interpreter for the deaf and hard-of-hearing on the floor during these sessions--certainly there is not one within visual range of the archived video. Until transcripts are provided and interpreters are added, many Texas citizens cannot access this event at all. In this sense, I am not a disinterested party, as hearing disabilities run in my own family.

To broaden the scope somewhat, I believe that this is a historical document that should be easily accessible--more accessible than video or audio limitations provide. This document contains transcripts of almost 64 hours worth of video; without rendering that into searchable text, it would be difficult to parse through this material for anything specific. While it is true that Senator Bob Deuell stated that a lot of the lower-educated and lower-income women have abortions at a higher rate. These are what I call 'unsophisticated patients'..., and that Senator Jane Nelson argued against an exception in the cases of rape and incest for patients under the age of consent because ...that discussion, as it pertains to this amendment, could put this bill in jeopardy, those statements are rendered more difficult for the public to access when they are buried in a 10-hour-long video.

But most of all, I believe that the telling of stories lived under the burden of a patriarchal society is an important form of activism. This final document contains testimonies from people--primarily, but not limited to, women--struggling to maintain their access to reproductive healthcare in a system actively working to deny those rights to them. And while my testimony is not included here, as I was physically unable to get to the capitol on these days, what I can do is add my voice to those stories here.

Margaret Atwood's The Handmaid's Tale showed me, many years ago, that a woman's story can be powerful in itself. And if the people who control my beloved home choose to turn Texas into New Gilead, the least I can do is help raise these voices, and my own voice, in unruly protest.

-- Ana Mardoll

Acknowledgments

This document would not exist without the immense work of over 150 volunteers, almost all of whom provided countless hours of listening, transcribing, proofing, formatting, editing, and copious emotional support to myself and the other volunteers through the course of this project.

Beyond the immediate need of putting words-on-paper, just knowing that these friends and loved ones were with me through this made it possible to continue. One of the things I was unprepared for when this project started was the way in which it quickly became old news (as designated by a mainstream media who was late to acknowledge it as news at all), as though reproductive rights were a nice experiment at the time but that was over now and time to move on. Knowing that others still cared about disseminating this information, about overturning this law, and about voting out those who pressed it upon us, kept many of us going when we might otherwise have been unable to. I am grateful for that invaluable support.

Each individual transcript in this document is credited to one or more volunteer by name or provided pseudonym. Yet I wish to stress that each transcript was touched by dozens of volunteers for additional formatting, editing, proofing, accuracy checking, and so much more. In the end, it was impossible to trace how many volunteers had touched each transcript, and I fell back on the admittedly imperfect method of only crediting the initial transcriptionist. But please know that every credited name in this document did so much more work, and gave so much more of themselves, than a simple credit can convey. As a Texan, and knowing that many of my volunteers were not Texans themselves, I owe a debt of gratitude to each and every one of these wonderful people.

I also wish to thank others whose names do not appear on a transcribed segment. Melissa McEwan, my dear friend and fellow blogger, who graciously consented to host my transcript updates and calls for volunteers in her online space. Jessica Luther, my fellow Texan activist whose commentary and updates from the capitol were invaluable to me during this time. Brooke Mixon, my friend and lawyer, who donated her own time to this project. Clarissa Filice, my cover artist, who spins my disconnected ramblings into genuine artwork. And Elaine Kennedy, my editor, who had every right to never want to talk to me again after I sent her a transcript encompassing 64 hours of poor-quality video, and yet who still answers my emails with charm, grace, and the patience of a saint.

Lastly, I wish to thank the members of the Texas Senate and Texas House of Representatives who tried passionately to prevent these bills from being passed, and who fought with a verve and determination that makes me proud to share a state with them. Whatever differences I may have with some of these fine men and women, I am pleased to consider them allies in the fight for the right of Texans to access reproductive healthcare and own our reproductive rights.

Wendy Davis' Opening Remarks

Part 001

00:00:00¹

Video Link: http://youtu.be/1lOijHOdx8c

Audio Link: http://archive.org/details/SB5001WendyDavisOpeningRemarks

Transcribed by: Ana Mardoll

Lt. Gov. David Dewhurst: Members of the Senate will come to order. What I wanted to do before we start today is remind our members, our guests on the floor, and all of our guests in the gallery that this is a traditional parliamentary body with strict rules of decorum and Senate rules prohibit outbursts on the floor and in the gallery; so I ask you to please keep your conversations to a minimum and any applause, make it polite, so that we can hear on the floor and proceed today. So thank you. Senator Watson, for what purpose do you rise?

Senator Kirk Watson: Parliamentary inquiry, Mr. President.

Lt. Gov. David Dewhurst: State your inquiry.

Senator Kirk Watson: You may have just addressed it, but I wanted to ask a parliamentary inquiry about the rules of decorum because this is one of those days, it could be a long day; it's a matter of great passion, among all of the people that are in the gallery and all the people that are on the Senate floor, and I wanted to make sure that it was communicated, and as I indicated you may have already answered that question, but I wanted to make sure it's communicated that we ought to maintain decorum.

Lt. Gov. David Dewhurst: And I appreciate that, Senator Watson. We've had incidences in the past where people were not maintaining decorum and they had to be removed, and in extreme cases clear the galleries, so we don't want to get to that point. So thank you. Thank you. Members, one of our colleagues and one of our friends, Senator Van de Putte, her father passed away regrettably on Friday-- this last Friday-- and I'd like to do a memorial resolution; I know it's been signed by many of the members, but I'd like to do that later today. The Chair recognizes Senator Hegar for motion to concur in the House amendments to Senate Bill 5.²

Senator Glenn Hegar: Thank you, Mr. President. Members, as we all know, Senate Bill 5 was passed out of the Senate on June 18th with an amendment that we put on by Senator Deuell. This bill is back before us in that exact version as well as the language that was passed out of the Health and Human Service Committee on June 14th. This bill will do four things in particular.

One, it will establish a state-compelling interest in preborn children who can feel pain and ban abortion at 20 weeks threshold, with the fact that there would be exceptions for medical emergencies and those definitions would: one, protect the life-threatening of the mother, her physical life, and also substantial irreversible impairment of any bodily function, and also an exception for severe fetal anomaly which is in statute today.

It would also rise all clinics to the Ambulatory Surgical Center standard, which we had passed into law several sessions ago for any abortion that was after 16 weeks. The bill thirdly, as we debated on this floor back on June 18th, would require doctors to have secured admitting privileges at hospitals within 30 miles of each clinic at which he or she performs those abortions. And then lastly, as we debated here last week on the floor, it would also include prescribing physician must examine the patient, her records, and determine the gestational age of a child, and also require the physician prescribing-- yes, sir?

Lt. Gov. David Dewhurst: I wonder if I could interrupt you just for a moment. Senator Davis, yesterday you gave me a sheet indicating it was your intention to filibuster. Is it still your intention to filibuster?

Senator Wendy Davis: Yes, Mr. President, I--

Lt. Gov. David Dewhurst: You're recognized.

Senator Wendy Davis: --intend to speak for an extended period of time on the bill, thank you very much.

Lt. Gov. David Dewhurst: Excuse me, I've just been asked by the Parliamentarian³: I'd like to make one motion on excusing Senator Eltife. Senator Whitmire moves to excuse Senator Eltife on matters of important business. Is there objection from any member? Chair has no objections; so ordered. Chair recognizes Senator Davis.

Senator Wendy Davis: Thank you, Mr. President, and thank you, members. As we began to debate this bill on the Senate floor last week, we talked about the fact that we were here on this particular motion because we had taken extraordinary measures⁴ to be here.

And I want to talk about that for a moment: how we wound up at this moment, on this day, on the Senate floor, debating this bill. And we wound up here because extraordinary measures were taken in order to assure that we would land here. We all know that the bills that are before us today, that have been folded into this one bill, Senate Bill 5, are bills that were filed during the regular, called session of the Texas legislature.

And we all know, as a body, why we did not hear this bill during the regular session. And that is because, of course, under our rules, our traditions, it takes two-thirds of the members of this body in order to suspend the regular order of business, because it is typical for a blocker bill to be filed, in order for a bill to be taken up. And we know that there were 11 members of this body⁵ who refused to allow the suspension of that particular rule.

We know that there were no real courses of action on the House side on this bill during the regular session, as well. And when the session ended, and within the hour, Governor Perry called us back. He initially called us back for another matter that also could not be heard on this Senate floor during the regular session because of that two-thirds rule and, of course, that was our redistricting bills.⁶

And now something extraordinary has happened. We were called to a special session, our presiding officer has decided-- against tradition of the Texas Senate-- to have us convene in order to talk about bills that could not be taken up in the regular session, and to not follow the tradition of the two-thirds rule in order to accommodate that occurring.

This bill, of course, is one that impacts many, many people. And it's one that took extraordinary measures in order for us to be here and to converse on it today. Members, I'm rising on the floor today to humbly give voice to thousands of Texans who have been ignored. These are Texans who relied on the minority members of this Senate in order for their voices to be heard.

These voices have been silenced by a Governor who made blind partisanship and personal political ambition the official business of our great state. And sadly, he's being abetted by legislative leaders who either share this blind partisanship or simply do not have the strength to oppose it. Partisanship and ambition are not unusual in the state capital, but here in Texas, right now, it has risen to a level of profound irresponsibility and the raw abuse of power.

The actions intended by our state leaders on this particular bill hurt Texans. There is no doubt about that. They hurt women; they hurt their families. The actions in this bill undermine the hard work and commitment of fair-minded, mainstream Texas families who want nothing more than to work hard, raise their children, stay healthy, and be a productive part of the greatest state in our country. These mainstream Texas families embrace the challenge to create the greatest possible Texas; yet they're pushed back and they're held down by narrow and divisive interests that are driving our state. And this bill is an example of that narrow partisanship.

Today I'm going to talk about the path these leaders have chosen under this bill, and the dark place that the bill will take us. I will try to explain the history of the failed legislation before us, the impact of that legislation, and most importantly what history tells us about these policies and the motivations behind them. They do real damage to our state, and to the families whose rights are violated and whose personal relationship with their doctor and their Creator-- which should belong to them and them alone-- are being violated.

Most importantly today, I will share with you what thousands of families have had to say about this legislation, and those bringing this legislation to the floor, when the majority of Texans want us working to press upon genuine business of the state of Texas.

The History of SB5

Part 002

00:10:53

Video Link: http://youtu.be/C6sguvWti1c

Audio Link: http://archive.org/details/SB5002TheHistoryOfSB5

Transcribed by: Ana Mardoll

Senator Wendy Davis: The legislation before you has a history, as we talked about a moment ago, and I'm going to go specifically through the history of this particular bill. There was ample opportunity during the special session to move these pieces of legislation, and some did move, but the will of the legislature did not propel them timely through the process; and here are the basics about what happened to each of those.

SB25 by Senator Hager was the 20-week abortion bill, filed on March the 5th. It was referred to State Affairs on March the 12th. It never received a Senate hearing. The House companion, House Bill 2364 by Representative Laubenberg was filed on March the 5th, referred to State Affairs on March the 11th, a hearing was held on April 10th, it was reported out of House State Affairs on May the 2nd. The bill was sent to House calendars on May 7th, and it was never placed on the calendar.

SB97 by Senator Patrick regarding abortion-inducing drugs and regulations on the administration of those drugs was filed on November the 12th, it was referred to Health and Human Services on January 28th, and a Senate hearing was held on February 26th. It was reported out of the Senate Health and Human Service Committee on March 28th, but it died on the Senate intents calendar, and it died for the reason that I mentioned a moment ago: because a third of the members of this Senate, who represented voices who deserve to be heard, prevented the bill from coming forward. There was no House companion to that bill.

SB537 by Senator Deuell related to the regulation of abortion facilities, requiring that they all have a standard met for Ambulatory Surgical Centers. That bill was filed on February 13th, it was referred to Health and Human Services on March 19th, excuse me, February 20th. There was a Senate hearing on the bill on March 19th, it was reported out of committee on March 26th, and it died on the Senate intent calendar; again, it died because a third of the members of this body made it so. There was no House companion filed to that bill.

SB1198 by Senator Taylor related to hospital admitting privileges and the requirement that doctors who perform abortions have admitting privileges at a hospital within a certain distance. It was filed on March the 6th, it was referred to Health and Human Services Committee on March the 12th, the Senate hearing was held on April the 16th, it was reported out of Committee on April 22nd, and it died on the Senate intent calendar for the reasons that I mentioned a moment ago: because a minority group of Senators who represent voices across the state of Texas made it so. There was a House companion to that bill: HB2816 by Representative Burkett. It was filed on March the 7th, it was referred to House State Affairs on March 18th, the House hearing was held on March 27th, it was reported out of Committee on April 24th, and sent to House calendars on April 26th, where it died.

And how did we get here? Well, of course, we were called to a special session. And, as I said, that session did not begin with the addition of this bill, it began with redistricting.

On June the 10thGovernor Perry added transportation funding to the call, and of course the Democrats in this chamber had indicated our intention that we would vote to advance that bill, were it placed before this one today. We understand that transportation is a priority. On June the 11th, these bills were filed; several bills were filed, including also a bill by Senator Huffman, SB23, a bill again that the Democrats have indicated, were it taken up today before this bill, we would have joined our colleagues in passing it, because we believe it's important.

Governor Perry, of course, on that day also expanded the special session to include legislation relating to the regulation of abortion procedures, providers, and facilities. He also spoke in support of that call, about the horrors of the national late-term abortion industry. He said that sadly some of those atrocities happen in our own state, and in Texas we value all life⁷, and we work to cultivate a culture that supports the birth of every child.

He said that we have an obligation to protect unborn children and to hold those who peddle abortions to standards that would minimize the death, disease, and pain that they cause. What he did not do was place on the call anything that would help to prevent unplanned pregnancies. What he did not do was place anything on the call that would aid women in making sure they never find themselves in need of the occasion that we meet here today to discuss.

On that same day the call was broadened again, the bills were referred and put on a fast track for hearing the following day, leaving little to no advance notice for a public hearing. But fortunately a procedural action forced the committee to wait an extra day-- a tagging of the bill-- allowing more Texans the opportunity to have their voices heard on these issues. Ultimately, the Republican leadership agreed to move only one bill on the Senate floor, and that was SB5 that is before us today.

Before bringing the bill up, there was discussion amongst the majority, and the 20-week fetal pain portion of the bill was removed by Republicans before the bill was presented to us for our consideration on the floor. As you probably remember from that night, Democratic Senators offered seventeen amendments to the bill on the Senate floor to address concerns from stakeholders. Primarily to address concerns, again, the prevention of abortion is the surest way-- excuse me. The prevention of pregnancy is the surest way to decrease the demand for abortion.

Included in those amendments were a request that we accept Medicaid funding from the federal level, which we knew would bring down a tremendous amount of money and assistance for women's health. Included in that was a full funding of the Women's Health Program which provides a 90-to-10 match⁸ for uses of helping women who are in need of family planning services. But all of those amendments were rejected.

The bill was voted out on party lines and then moved over to the House. The bill was received by the House on June 20th, and was set for a public hearing the following day. The hearing also included HB16 which was the 20-week stand-alone bill, and HB60, the omnibus bill. Hundreds of Texans from all over the state appeared to testify at the hearing. But unfortunately the hearing-- which lasted sometime until the wee hours of the morning, 3:30 to 4 o'clock-- was halted before all of the testimony was given by those who had waited, many of them from the prior morning, to voice their feelings on the bill. And it is my intention today to give them a voice by reading all of their testimonies on the Senate floor.

In committee, SB5 was changed to include the section of the bill-- the 20-week ban-- that was removed in the Senate, also HB60 and HB61. On the House floor there was minimal engagement and participation by the House author on the legislation.⁹

House Ds offered thirteen amendments targeted at addressing concerns raised by stakeholders. All were rejected. And now we find ourselves here. This is the omnibus piece of legislation that contains these elements of bills that were filed in the 83rd session: the 20-week ban, the abortion-inducing drugs provision, the Ambulatory Surgical Center standard, and the hospital admitting privileges. The alleged reason for the bill is to enhance patient safety; but what they really do is create provisions that treat women as though they are not capable of making their own medical decisions.

They weaken standards of care because, as we all know, every member on this floor knows that the provisions of the Ambulatory Surgical Center standards will immediately place 37 of the 42 abortion clinics in Texas out of compliance. And though the arguments on the Senate floor were made that the reason for those standards was for patient safety, not a single instance, not a single instance could be demonstrated to illustrate why those Ambulatory Surgical standards were important in assuring women's safety. Not a single example was provided where women had been provided a less safe atmosphere in the existing clinical setting today than they would receive in that setting.

What this bill really does is to threaten the doctor-patient relationship. And we know that we received a great deal of information from doctor's groups, which I'll read into the record in a little while, about the intrusion on that relationship and we know that in no other instance has this legislature chosen to place itself between a woman and her doctor, or any patient and their doctor. We know that these additional standards are unnecessary, they're unsupported by scientific evidence, including unnecessary requirements that may be extremely difficult and in some cases impossible to meet, without a basis in public health or safety.

As we've been debating this issue, we have been reminded that there was a time in our country when only the wealthy could afford to access abortion services because they had the ability to travel to places that it was legal, and that women who didn't have that access to care were relegated either to carrying a pregnancy to term, or-- and very sadly-- to some unsafe methods that they turned to, to try to address that need. And we know that women lost their lives over that.

We also know, in written testimony from the group-- the National Obstetrics and Gynecologic Group-- that their fear is the same thing is going to happen. In the state of Texas, through this bill, we are asking that women be forced to step back in history, back to a time where once again wealthy women who have the ability and the flexibility in their lives and their schedules to travel for these services will be accommodated and women who will not will suffer a different, and unfortunately probably in some instances a life-threatening, consequence.

Testimony of Texas Medical Association

Senator Wendy Davis: The 20-week ban on abortion: we've heard a great deal of testimony about that particular provision, and I want to hit a few highlights of what has been shared with us. Number one, and most importantly, from our medical community we've heard the concern that this interferes with the practice of medicine. As important, we know that concerns have been raised that this ban interferes with a woman's healthcare decision before she and her doctor may have important health information about her own health and the health of the pregnancy.

The ban will have devastating consequences when a woman is experiencing medical complications. And unfortunately, it bans abortion before a woman may receive important information about her own health and the health of her pregnancy. Fewer than 2% of abortions occur after 20 weeks and, while they are uncommon, it is important that a woman and her doctor have every medical option available.

On the abortion-inducing drugs restriction, some of the key concerns that we've heard about that: one, that it requires that the physician-preferred course of treatment be replaced with a treatment that is potentially more physically harmful to the patient. And again, though asked, no one on this Senate floor was able to provide information to us that demonstrated any other incidents where the legislature had taken it upon itself to interfere in such a dramatic way in a physician's decision-making as it pertains to the administration of treatment.

The bill would require physicians to follow an outdated protocol, limiting women's access to safe effective medication abortion. It directly contradicts a physician's ability to provide the highest level of care for their patients, by requiring a government-prescribed course of treatment. It prohibits physicians in Texas from providing the standard of care to their patients, subjecting physicians to disciplinary action for providing the nationally-recognized standard of care endorsed by the leading medical professional association of obstetricians and gynecologists: ACOG.

On the Ambulatory Surgical Center standards: additional state government regulations on an already heavily-regulated practice of medicine was one of the primary concerns raised there. Healthcare providers comply with all federal, state, and local laws and regulations, and they strongly opposed regulations that failed to make healthcare more cost-effective, safer, efficient, or accessible. Texas already requires abortions performed after 16 weeks to be performed in Ambulatory Surgical Centers. And we know, and I'll read some information in a little while about the fact, that there is a reason for that because the incidence of problems that arise prior to that period of time, at existing clinical settings, is extremely low; much lower, in fact, than any complications that arise from the live birth, of which we are not subjecting to the same standards.

When these facilities close, and they will, women will lose access to their trusted provider. These closed facilities cannot offer any other services that they may have been providing. And we know that in Texas sometimes these facilities are shared facilities where family planning services are also provided.

What is required of reproductive healthcare centers today? Today in the United States, reproductive healthcare services are among the safest and most commonly sought forms of care in the United States. Placing unreasonable requirements on healthcare centers that provide safe, legal abortion today is uncalled for and, again, not a hint of evidence has been offered as to why it's needed. And we know why. Governor Dewhurst's tweet told us why.¹⁰

It is because the real aim of this bill is not to make women safer, but it is to force the closure of multiple facilities across the state of Texas without a single care or concern for the women whose lives will be impacted by that decision. Not a single care or concern, because our leadership has demonstrated that it is prioritizing its own political possibilities over potential and devastating consequences for individual women.

Let's talk about the parts of the bill that are medically unnecessary. First of all, I think each of us would agree that as patients we trust our doctors, not the government, to determine what medical equipment and what size rooms is necessary to provide us with good care. It is medically unnecessary to require health centers to build a hospital-grade operating room for an abortion procedure when one is not required for this type of procedure. And in fact we know there are many out-patient clinical procedures that are more invasive, have higher incidences of problems, that today are allowed to take place in clinical settings such as a doctor's office, without the standards that are being required in this bill.

Texas, of course, as I said a minute ago, already requires that abortions performed after 16 weeks be performed at Ambulatory Surgical Centers. This provision, the provision in these bills, goes further by requiring that all health centers that provide abortions comply with regulations that are equivalent to those governing places where surgery takes place. The vast majority of abortions, however, are out-patient procedures that can be performed in a health center, making those requirements inappropriate, unnecessary, and not at all about the health of women.

I want to read into the record written testimony that we were provided by a variety of groups on the measures that are before us today. This from the Texas Medical Association: it was addressed to the House Committee on State Affairs, on House Bill 16 and 60 by Representative Jodie Laubenberg, and it's dated June the 20th, 2013.

"The Texas Medical Association is a private, voluntary, non-profit association of more than 47,000 member physicians and medical students. TMA was founded in 1853 to serve the people of Texas in matters of medical care, prevention and cure of disease, and improvement of public health. Today our maxim continues in the same direction: physicians caring for Texans. TMA's diverse physician members practice in all fields of medical specialization. Our member physicians fall on both sides of any debate on abortion. Our concerns with House Bills 13 [sic] and 60 are not based on any position on abortion. Rather, our concerns are with legislative intrusion into the patient-physician relationship, and the details of the practice of medicine, and with a legislatively-created standard of care.

"Example of concerns that these proposed bills are:

"House Bill 60, Section 3, Sub-Chapter D directs physicians to take specific actions related to the prescription of an abortion-inducing drug approved by the U.S. Food and Drug Administration for use by women who seek an abortion. The bill prescribes details and the practice of medicine, such as the requirements for the examination, patient-physician communication, and protocols. As previously outlined in our written statement on Senate Bill 97 in the 83rd Texas legislature, TMA is concerned this legislation sets a dangerous precedent of the legislature prescribing the details of the practice of medicine. The medical community, based on science, must make these determinations-- not the legislature.

"Sections 171.0031 and 171.063c in HB60 would require a physician or other healthcare personnel to be available by phone 24 hours a day indefinitely. Although the intent of these provisions may be to allow the patient access to the provider for assistance with complications, as written they are overly broad and could require 24-7 access for years. Furthermore, these sections are vague and they appear to require access to medical records 24 hours a day, which is an overly broad and unprecedented requirement.

"House Bill 16, Section 2, Sub-Chapter C and House Bill 60, Section 3, Sub-Chapter C include a definition of profound and irremediable congenital anomalies based on the amount of time a physician reasonably believes the infant would survive after birth. The definition places that time at minutes-to-hours, which TMA opposes because it is arbitrary and would be impossible for a physician to predict. The bill may seek to allow an exception for conditions in which death after birth would be imminent, and in that regard use of the word 'imminent' would be more appropriate than minutes-to-hours.

"Additionally, this proposed definition does not take into account fetal trauma, which in severe situations could result in imminent death after birth. The following definition for severe fetal abnormalities currently exists in Section 285.202 Health and Safety Code and may be an appropriate definition to replace the proposed definition for profound and irremediable congenital anomalies to severe fetal abnormalities, meaning 'a life-threatening physical condition that in reasonable medical judgment, regardless of the provision of life-saving medical treatment is incompatible with life outside the womb'.

The patient-physician relationship is one of mutuality and trust. Patients must be able to trust their physicians are always acting in each patient's individual best interest, and must be assured of candid communication with their physicians so they may effectively evaluate their medical care options. TMA strongly opposes any legislation that interferes in this relationship. TMA appreciates the opportunity to provide you our concerns regarding HBs 16 and 60 and urges you to take these comments into serious consideration. We are happy to provide any additional information or assistance you may request.

And it is signed by Stephen Brotherton, M.D., the president of TMA.

Testimony of Physicians for Reproductive Health

Senator Wendy Davis: We also had written testimony provided to the Health and Human Services Committee by Robin Wallace, MD/MAS, who is a Leadership Training Academy Fellow with Physicians for Reproductive Health. She testified before the Texas Senate Committee on Health and Human Services, on Senate Bill 537, during the regular session on March 19, 2013; and she provided this written testimony, which I think is compelling:

"Physicians for Reproductive Health is a doctor-led national advocacy organization that uses evidence-based medicine to promote sound reproductive health policy. We work to make quality reproductive health services an integral part of women's health care.

"Physicians for Reproductive Health opposes Senate Bill 537, which would impose burdensome, expensive, and unnecessary requirements on facilities providing surgical abortion in Texas, causing many to shut down. Though this bill purports to improve patient safety, it would in fact harm women by reducing access to safe, timely abortion services.

"I am a board-certified family medicine doctor, licensed to practice medicine in Texas. I received my medical degree from the University of North Carolina in Chapel Hill. I completed my postgraduate training at the Santa Rosa Family Medicine Residency, an affiliate of the University of California, San Francisco. I also completed a fellowship in primary care research and family planning at UCSF, as one of a select number of family physicians who have participated in this specialty training. I currently live and practice in the Dallas/Fort Worth area. I am pleased to submit this testimony in opposition to SB537 on behalf of Physicians for Reproductive Health.

"SB537 is harmful to women. As a physician who takes care of women every single day, I cannot stress enough how dangerous these laws are to the health and well-being of my patients. Women need timely access to safe abortion care. SB537 imposes medically unnecessary standards on abortion facilities. SB537 would require abortion facilities to become Ambulatory Surgical Centers (ACSs), [sic] which are the setting for complicated and invasive surgical procedures. Abortion, especially early abortion in the first twelve weeks, is a safe medical procedure with inherently low risk in outpatient settings without hospital-like facilities. Serious complications arising from surgical abortions at any gestational age are uncommon.

By comparison, pregnancy and childbirth are significantly more dangerous to women than abortion. For example, CDC data indicates that the pregnant/pregnancy-related mortality ratio in the United States is 15.2 deaths per 100,000 live births, compared to .64 deaths per 100,000 legal abortions. And she provides a footnote for that from the CDC in a report that was compiled in 2011: The requirements imposed by this bill are simply medically unnecessary, unsupported by scientific evidence, and contrary to the standards of care.

She goes on to say: "I think of my patient, Samantha, a mother of a two-year-old son who was born two months early. Upon determining that she was pregnant again, Samantha was overwhelmed by the thought of another pregnancy with a potential risk of complication, and she decided to terminate that pregnancy. Luckily, Samantha lived within fifteen miles of our outpatient clinic, which was easily accessible on a major city bus route. Samantha was able to have her abortion safely and timely in the first trimester.

"Another patient named Monica, a 23-year-old woman, presented to me at almost twelve weeks. She had a three-and-a-half-month-old baby girl at home who was delivered by Caesarean section. This patient did not realize she was pregnant earlier, because she had not had a menstrual period since her delivery. We were able to provide her abortion procedure to her safely and quickly, so that she could return home to care for her baby. A young mother does not have time to travel many miles or hours away. She needs to be able to get back to her infant and take care of herself and her family.

"My patients come from all walks of life, from every situation imaginable. One thing they have in common is that they seek abortion because they've weighed all the options and know in their hearts that this private decision is best for themselves and their families. They do not deserve the burden of a law that has no medical benefit or basis.

"If SB537 becomes law, I fear for my patients like Samantha and Monica, who already face challenges receiving abortion care in Texas. The cost-prohibitive regulations associated with SB537 would force safe, accessible abortion facilities to close, while doing nothing to improve patient safety. SB537 would deny women safe, needed medical care. SB537 would create unreasonable obstacles for healthcare providers like myself, who are committed to protecting the health of women by making these needed services available. Many health centers would close due to the inability to comply with the standards of an ASC. In turn, this would force women in Texas to travel out of state, if they have the resources, or would deny them safe care altogether.

"I cared for a patient, Julia, a Registered Nurse with a young child at home. Julia was pregnant, and this was a very wanted pregnancy. She and her husband discovered through a routine 14-week ultrasound that she had a very high-risk pregnancy with a significant chance of stillbirth. They made the difficult decision to end the pregnancy. We were the closest provider to Julia, but still a four-hour bus ride away. Due to current Texas state law, she had to make this trip twice: once for her required ultrasound, and again after the mandatory 24-hour waiting period to have her procedure performed.

"Another patient of mine drove five hours by herself, because there was no provider closer to her. Her pregnancy was diagnosed at 22 weeks with a lethal fetal anomaly. Continuing the pregnancy would mean waiting for the fetus to die in utero, during labor, or immediately after delivery. My patient and her husband made the heartbreaking decision to end the pregnancy. She had to stay alone at her hotel until her husband could follow two days later for the final day of her procedure. I provided care for her, and she did medically well, but she experienced financial hardship associated with traveling such a long distance to receive care.

As a physician, I know that access to safe and legal abortion care is critical to the health of women. When abortion becomes less accessible, it becomes less safe. Medically unnecessary restrictions on abortion cause women to delay their care as they locate a provider, travel greater distances, or even seek services of an unlicensed provider, all resulting in taking unnecessary risks with their health. While Texas women have the right to safe legal abortion, in reality, there are already very few facilities in Texas to provide this essential care. In 2008, 92% of Texas counties had no abortion provider. And she cites for that, a report prepared by the Alan Guttmacher Institute, State Facts About Abortion¹¹, available online and last accessed according to her footnote, March 15, 2013.

Decreasing the number of providers in Texas will have negative effects on women, even beyond the immediate outcomes of their pregnancies. Recent research has shown that when a woman seeking an abortion is denied access to care, she is more likely in the future to become unemployed, live below the poverty line, and experience intimate partner violence. And she cites for that statement Greene Foster, Reports on the Socioeconomic Consequences of Abortion Compared to Unwanted Birth¹², and she also cites K.S. Chibber, Receiving vs. Being Denied an Abortion and Subsequent Experiences of Intimate Partner Violence¹³, in support of her statement.

"If additional facilities are forced to close under the burden of SB537, this would have a devastating impact on the health and well-being of Texas women and their families.

Conclusion: SB537 does nothing to improve patient safety. Rather, it would close the doors on many clinics that provide comprehensive, safe, legal, and compassionate care to women in Texas. On behalf of Physicians for Reproductive Health, I strongly urge the Senate Health and Human Services Committee to oppose SB537 and protect Texas women's health.

Testimony of Texas Hospital Association

Senator Wendy Davis: We also received this written testimony from the Texas Hospital Association regarding admitting privileges; and this was provided on June 20, 2013. This was testimony given in opposition to Section 2 of House Bill 60, as filed by Representative Laubenberg, relating to the regulation of abortion procedures, providers, and facilities, and given to the House Committee on State Affairs, June 20, 2013.

"The Texas Hospital Association, on behalf of its 450 member hospitals, offers the following statement in opposition to Section 2 of House Bill 60 as filed:

"Number one, hospitals should not be required to grant privileges to physicians who do not practice in the hospital. THA agrees that women should receive high-quality care, and that physicians should be held accountable for acts that violate their license. However, a requirement that physicians who perform one particular outpatient procedure, abortion, be privileged at a hospital is not the appropriate way to accomplish these goals. A hospital granting privileges to a physician serves to assure the hospital that the physician has the appropriate qualifications to provide services to patients in the hospital.

"Thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges. Requiring a hospital to grant admitting privileges to physicians who do not provide services inside the hospital is time-consuming and expensive for the hospital, and does not serve the purpose for which privileges were intended. Rather, the Texas Medical Board is the appropriate agency to address whether physicians are delivering appropriate care to patients, as the TMB regulates all physicians. Hospitals should not be required to assume responsibility for the qualifications of physicians who do not practice in the hospital.

"Should a woman develop complications from an abortion, or any other procedure performed outside the hospital, and need emergency care, she should present to a hospital Emergency Department. Requiring that a doctor have privileges at a particular hospital does not guarantee that this physician will be at the hospital when the woman arrives. She will appropriately be treated by the physicians staffing the Emergency Room when she presents there. If the Emergency Room physician needs to consult with the physician who performed the abortion, the treating physician can contact the doctor telephonically, which is often done in other emergency situations.

"Thus, THA respectfully requests that the language in proposed Section 171.0031, section A1, be deleted, as the language in Section 171.0031, section A2, is the best and most appropriate way to ensure that a woman who experiences complications from an abortion can get advice about and treatment of those complications. Section 171.0031-A2 requires that the physician performing the abortion provide to the patient the following: a 24/7, 365-day-a-week-- day-a-year-line for her to be able to contact the physician or physician's office, the name and contact information of the hospital nearest to her home, as the woman will seek hospital services through the Emergency Department.

Additionally, Section 245.023 of the Texas Health & Safety Code requires the Texas Department of State Health Services, the licensing agency for abortion facilities, to maintain a toll-free number through which individuals can learn, among other things: whether an administrative or civil penalty has been imposed against the facility or a physician who provides services at the facility, whether professional discipline has been imposed against a physician who provides services at the facility, and whether there are any criminal convictions of the facility or of a physician who provides services at the facility that is relevant to services provided at the facility. A copy of Section 245.023 and the implementing regulation are attached as Appendix A.

They also propi--provided a proposed amendment, with alternative language: "As an alternative to the deletion of Section 171.0031-A1, THA requests that new subsection C be added to Section 171.0031, to clarify that hospitals are not required to consider or grant medical staff privileges to physicians who perform elective abortions.

To begin the process of privileging, a physician submits an application to a hospital for membership on the medical staff, and a request for clinical privileging. The hospital is required to review any application received and take action on it within specified timelines. Failure of the hospital to review the application, or reject it without review, could be grounds for a discrimination lawsuit against the hospital. To require hospitals to consider applications for medical staff membership and privileges from a physician to perform abortions will impose unnecessary administrative costs on hospitals, and may subject hospitals to legal challenges if an application for membership and privileges is denied because a physician performs elective abortions. A copy of THA's recommended amendment to Section 171.0031 is attached.

"(a) The department on request shall make the following information available to the public.

"(1) the status of the license of any abortion facility;

"(2) the date of the last inspection of the facility, any violation discovered during that inspection that would pose a health risk to a patient of the facility, any challenge raised by the facility to the allegation that there was a violation, and any corrective action that is acceptable to the Department and that is being undertaken by the facility with respect to the violation; and

"(3) an administrative or civil penalty imposed against the facility or a physician who provides services at the facility, professional discipline imposed against a physician who provides services at the facility, and any criminal conviction of the facility or a physician who provides services at the facility that is relevant to services provided at the facility.

"Subsection (b): Subsection (a) does not require the department to provide information that is not in the possession of the department. The Texas State Board of Medical Examiners shall provide to the department information in the possession of the board that the department is required to provide under Subsection (a).

"(c) The Department shall maintain a toll-free telephone number that a person may call to obtain the information described by Subsection (a).

"(d) An abortion facility shall provide to a woman, at the time the woman initially consults the facility, a written statement indicating the number of the toll-free telephone line maintained under Subsection (c). The written statement must be available is-- must be available in English and Spanish, and be in substantially the following form:

"A toll-free telephone number:

'You have a right to access certain information concerning this abortion facility by using the toll-free telephone number above. If you make a call to the number, your identity will remain anonymous. The toll-free telephone line can provide you with the following information:

'(1) Whether this abortion facility is licensed by the Texas Department of Health.

'(2) The date of the last inspection of this facility by the Texas Department of Health, and any violations of law or rules discovered during that inspection that may pose a health risk to you.

'(3) Any relevant fine, penalty, or judgment rendered against this facility or a doctor who provides services at this facility.'

(e) This section does not authorize the release of the name, address, or phone number of any employee or patient of an abortion facility, or of a physician who provides services at an abortion facility.

Testimony of ACOG (1)

Part 006

1:02:32

Video Link: http://youtu.be/VQXbTo3uMfw

Audio Link: https://archive.org/details/SB5006TestimonyOfACOG1

Transcribed by: Hannah R. Deutsch

Senator Wendy Davis: And then this statement by the American Congress of Obstetricians and Gynecologists: Texas ACOG Statement Opposing Texas Fetal Pain Legislation; and this comes from District 11 of that particular organization.

"The Texas District of the American Congress of Obstetricians and Gynecologists, Texas ACOG, opposes HB16 by Representative Laubenberg. Texas ACOG opposes HB16 and other legislative proposals that are not based on sound science or that attempt to prescribe how physicians should care for their individual patients.

"As a district of the nation's leading authority on women's health, our role is to insure that policy proposals accurately reflect the best available medical knowledge.

"Terminology. The use of appropriate standard terminology is essential. A 'child' is a person from birth until the age of legal majority. The proper term for the second to eighth week is 'embryo'. The embryo becomes a fetus at ten weeks. The term 'fetus' is the correct term to use until birth. The language regarding 'post-fertilization age' is rarely used outside in vitro fertilization. The post-fertilization age of the embryo or fetus is not known. There is inherent variability in the timing of ovulation, fertilization, and implantation. Obstetricians, gynecologists, and the medical community at large use the first day of the last menstrual period, LMP, to date pregnancies. Post-fertilization dating is not an accurate substitute and should not be referenced in legislation.

Fetal pain. The statement, quote, 'substantial medical evidence recognizes that an unborn child is capable of experiencing pain by not later than 20 weeks after fertilization', end quote, is not accurate. And of course, members, we know that that quote was in the bill analysis as well as in the bill itself. "The medical profession produced a rigorous scientific review of the available evidence on fetal pain in the Journal of the American Medical Association, JAMA, in 2005. Pain perception requires conscious recognition or awareness of a noxious stimulus. Neither withdrawal reflexes nor hormonal stress responses to invasive procedures prove the existence of fetal pain, because they can be elicited by non-painful stimuli and occur without conscious cortical processing. Fetal awareness of noxious stimuli requires functional thalamocortical connections.

"Thalamocortical fibers begin appearing between 23 to 30 weeks gestational age which electroencephalography suggests the capacity for functional pain perception in preterm neonates probably does not exist before 29 or 30 weeks. The review concluded that fetal perception of pain is unlikely before the third trimester. More recent studies confirm that finding.

"The Royal College of Obstetricians and Gynecologists, RCOG, is the UK-based equivalent to ACOG, with 12,500 members worldwide and representation in over 100 countries on all 6 continents. In 2010, RCOG rigorously reviewed the scientific literature and, quote, 'in reviewing the neuro-anatomical and physiological evidence in the fetus, it was apparent that connections from the periphery to the cortex are not intact before 24 weeks of gestation. And, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation,' end quote.

"Supporters of fetal pain legislation only present studies which support the claim of fetal pain prior to the third trimester. When weighed together with other available information, including the JAMA and RCOG studies, supporters' conclusions do not stand.

"Fetal viability. Most obstetrician-gynecologists understand fetal viability as occurring near 24 weeks gestation, utilizing LMP dating. Supporters of fetal pain present misleading evidence about fetal viability, especially in using post-fertilization age instead of LMP dating, falsely implying high survival rates among neonates that are overwhelmingly pre-viable. Supporters may point to the survival of live-born infants in a June 2009 JAMA study, but fail to mention that the vast majority of infants born prior to 24 completed weeks LMP died prior to or during birth. In this study 93% of infants at 22 weeks died, 66% at 23 weeks, and 40% at 24 weeks. 91% of those that lived were admitted to the NICU. Also not mentioned by supporters is the fact that survival alone is not the only endpoint for neonatologists: intact survival is. In this same study, 98% of infants born at 22 weeks LMP, and 91% born at 23 weeks LMP, had at least one major medical problem such as hemorrhaging brain or bowel.

"The American Academy of Pediatrics Committee on Fetus and Newborn states that the incidence of moderate or severe neuro-developmental disability in surviving children assessed at the age of 18 to 30 months is high, approximately 30-50%, and remains at that high level until 25 weeks LMP. Babies delivered at these gestational ages often suffer hemorrhaging bowel, blindness, deafness, and stroke as a result of their premature delivery.

"Fetal anomalies. Many fetal anomalies can be diagnosed before 20 weeks, others are not diagnosed until around 20 weeks. HB16 provides an inadequate exception for severe fetal abnormalities. This exception puts into statute how a doctor should exercise medical judgment and interferes with the private nature of deciding what to do when a fetus has been diagnosed with severe fetal abnormality. There are numerous fetal anomalies that are regularly detected only after 20 weeks. While chromosomal anomalies can generally be diagnosed by 20 weeks, some low-risk couples do not elect to have testing, and instead learn that their fetus has a chromosomal anomaly during routine ultrasound later in pregnancy, an ultrasound that is often performed at 18 to 20 weeks gestational age. Moreover, many lethal or serious fetal problems that are not compatible with life outside of the womb are caused by conditions that are structural, not chromosomal, and are not susceptible to testing by amniocentesis. These can only be diagnosed by detailed ultrasound examination. Many tests cannot definitively diagnose grave conditions affecting a pregnancy prior to 20 weeks because the fetus is not sufficiently developed for those conditions to be detected even in cases where an ultrasound detects indications of a structural anomaly prior to 20 weeks.

"Additional tests such as amniocentesis or echocardiogram are often necessary to confirm the diagnosis. Scheduling those additional tests and obtaining the results will take additional time, often up to 2 weeks. By the time a diagnosis is confirmed by a specialist capable of diagnosing these anomalies the pregnancy has often progressed beyond 20 weeks. As a result, a woman whose fetus is critically impaired often will not learn of that fact until well into the second trimester. The medical difficulty, if not impossibility, of diagnosing many of these lethal structural defects before 20 weeks is heightened by the fact that additional tests and doctors' appointments are often needed to confirm the anomaly as discussed above. Once the diagnosis is confirmed many couples need additional time to make a well-informed, careful decision about whether to terminate a wanted pregnancy.

"General obstetricians who suspect a problem based on an ultrasound at 18-20 weeks often refer their patient to a perinatologist, the relevant specialist for confirmatory study and then diagnosis. These confirmatory tests take additional time, sometimes several weeks, to schedule and obtain results, particularly for women who live in rural or underserved areas. The final diagnosis will